Zero Tolerance Policing

Zero-tolerance style policing is never far away from the headlines, it seems that no matter what area of policy, one can launch a 'zero tolerance crackdown' on behavior.

In motoring enforcement the phrase is never far away from policymakers lips, perhaps the most recent example is the report of a 'zero tolerance crackdown' on mobile phone use while driving in Northern Ireland.  Whilst I certainly do not condone the activity, it is very dangerous, I do have reservations of any policy that sells itself as 'zero tolerance'.  Frequently such policies aren't truly zero tolerance; officers do still exercise discretion albeit perhaps with less frequency than they may have previously.  But my main objection  is that frequently those who claim to want zero tolerance, don't actually want anything of the sort, they want zero tolerance against certain types of people not certain types of behaviour.

My objection to zero tolerance stems more from the idea that it represents something that we, the public want.  Frequently we don't want anything like zero tolerance policing on the roads, just listen to anyone debating speeding and you will soon hear the call for greater discretion

In speeding enforcement the argument typically means that we want zero tolerance against boyracers etc... but in our case, good honest upstanding decent hardworking citizens that we are want our police force to have a bit of discretion, a bit of common sense, to recognise that although we may speed, we are not speeders.

True zero tolerance policing would not recognise that difference, the zero tolerance is to behaviour not motivation.  Thus if we accidentally speed, under zero tolerance, the accidental nature of our speeding is unimportant we will be punished in exactly the same manner as if we had deliberately set out to speed (£100 fine and 3 Points).  It is no exaggeration to suggest that great feelings of injustice typically accompany being found to be a speeder, and typically our first complaint is that the officer / police force lacks discretion and common sense.

These calls to commonsense are the antithesis of zero tolerance, it's a call for personalised discretion based on our common understand that it is the other, not us, that is the real problem, and the officers / agencies zero tolerance focus should be on them. 

Actual zero tolerance policing can, thus, create greater problems for law enforcement agencies, where citizens feel that the actions they are taking are illegitimate and used for an illegitimate purpose ("to catch out" or "prey on the easy target").

Zero tolerance certainly does have benefits for enforcement agencies, and can be defended on a principled basis.  It removes the potential for "bad" discretion (where officers undertake enforcement for less noble purposes e.g. racism), although, short of constant surveillance of officers actions, even a policy of zero tolerance cannot outlaw this practice.  However it does save officers the need for having to justify each instance of punishment, especially in hard cases, and can thus encourage more robust action against behaviour.  (Note behaviour not motivation!)

Do we really want zero tolerance, I suspect not, what we want is an operationalised form of zero tolerance, one that can recognize the difference between behaviour and motivation, and punish those where both motivation and behaviour are aimed at law breaking.  However this is not what zero tolerance generally implies.

Zero tolerance is an easy statement to make and conjures up images of an efficient, effective enforcement scheme that captures all the people we want it to capture.  But the hard cases, what about them? What about the car that parks 5cm over the line, or 1cm over the line.  With ZTP we should say, a la Hawaii Five-O, 'book em Danno'? I suspect not many would agree with that.  Thus do we really want zero tolerance? Probably not.  

Do we need zero tolerance?  Well that is a question for another day.

Should the law be moral

Whilst perusing the news stories reported in the lower right of this blog I came across this letter to the Derby Telegraph

What interested me were two things, firstly the letter writers claim that they were going to appeal the notice after having paid the notice. A very poor strategy in my opinion because there will be nothing to appeal once the notice is paid.  It seems that the writer intends to launch a judicial review of the police decision to issue the notice, a very high risk and expensive strategy for a speeding ticket!  The average judicial review is now estimated to cost in the region of £10,000's a hefty price to pay to challenge a notice.

Note to all: it is never a good idea to risk financial ruin over any fixed penalty notice!

The second interesting part of this letter was the reference to an earlier letter entitled "Morally wrong to catch speeders on safe road".  I have read this letter and the complaints in it are quite familiar, anyone wishing to understand how these complaints come about would do well to have a look at this brilliant work from Dr Helen Wells (portions available at Google books) at the University of Keele.

What I find particularly interesting about the second letter is the claim that

If one is speeding near people or schools, fair cop, but to set up shop where the road conditions lull you into a false sense then it is morally wrong and he should be ashamed.

It is interesting that it is the officer that should be ashamed, according to the writer, not the person caught speeding.  This seems a reversal of the way in which criminal justice should work, it is the offender who is meant to feel shame for their offence and in doing so come to see the law as legitimate and to be obeyed.

It seems with speeding enforcement, and the mechanisms used to capture speeders, that there is a victim / perpetrator reversal.  Undoubtedly this writer feels that receiving the notice has imparted some really unwarranted criticism of their driving and this has led them to reevaluate not their driving, but their attitude to the law and those who enforce it.  This is a powerful social impact for what seems to be such a minor penalty (£100 + 3 points).  

I have found this process takes place in most on the spot penalty punishments, whether it is for disorder, littering or speeding, the notice means a lot more than what has been described previously as "just another bill".  The notice transmits meanings to those who receive them, but not those that are intended by enforcement agencies.  Instead what happens is that those who receive them are generally outraged at being labelled a "problem" by the agency as the above two letters show.  The first writer is considering drastic legal action to challenge their FPN and the second suggests that they should not be criticized at all, instead the police should for enforcing the law in this way.

Perhaps this is a good thing, the Fixed Penalty Notice should be something more than "just another bill", but what else it is, at present, is at times hotly contested.  What do you think? Would you ever think of a fine as just another bill to add to all the rest?

"illegal" parking fines

I came across this story the other day in the Daily Mail:

Legal battle over 'illegal' car park fines at supermarkets and hospitals could spark refunds for millions of motorists

A Cambridge graduate is seeking to launch a multi-party action  against private parking firms to seek a declaration that the amounts charged are not reasonable and unenforceable.

Based on the story I think the challenge is pretty hopeless, an obiter judgement (not decisive of the main issue in the case) in Parking Eye Limited v Somerfiled Stores [2011]  is pretty fatal to the students case.  Paragraphs 414-434 deal with the relevant principles.

A very brief summation of the judges comments is that penalty charges, although expressed as penalties are not penalties but contractual conditions.  Thus if you park outside the stipulated hours (or those you have purchased) then it is a condition of the contract that that act brings with it a charge.  Thus when taken to court for non payment you are essentially being sued for breaking the contract, the contract to pay £100 (or whatever sum is specified on notices at the parking location) to park outside of the other rules in the contract.

Thus it is not right to see the excess charge as a penalty but a charge for services rendered, those services are parking services.  Essentially the small amount you actually pay (if you park within the rules) needs to be thought of as a "peppercorn rent", you pay a small fee to park where otherwise it would cost the full (eg £100) amount.  If you don't pay the small fee, or stay outside the small fee conditions, then the full sum is due.

Following this I think the student's case is pretty hopeless.  I think the problem lies in the fact that most of us (me certainly included) think that the small fee (e.g. 70p per hour) is the rate to park, it isn't in contractual terms.  The contract is is to pay £100 which is reduced to 70p per hour if we agree to abide by certain conditions.  These are standard conditions in most commercial contracts and sadly for us all means that we will have to keep paying these penalties.

To be clear though if the parking company is asking for more than the stipulated amount of penalty as written on the signs in the car park, there appears to be a very arguable case that the increase is not necessarily recoverable.  At this point the student's claim would be valid, but this is only where the amount exceeds the excess charge specified at the parking location.

There are also potentially claims in nuisance that the parking company could make, but as the article doesn't mention this nor does it appear to be an issue in this case that discussion can be left for another day.

This post should not be taken as supporting private parking companies, I have come across some crazy parking tickets recently issued by some companies that make you question what level of quality assurance they operate under!  Again an issue for another day.

Good luck to the student but I think his case is hopeless.

UPDATE

I have been in correspondence on twitter with Mr Green who is taking the case.  There are some very interesting arguments being made (which sadly don't make it into the newspaper article) and the case is listed for next February in front of the Court of Appeal.  Here is Mr Green's blog on the issue.  I do wish him well.

You can follow Mr Green on twitter to see how he gets on.

Decriminalised Parking Enforcement

There is a tendency in academia at times to shy away from making concrete proposals for reform of the law.   It is so much easier to "critique" than offer positive solutions that have real practical input.  That being said I am going to offer my suggestion for a change to the law in parking enforcement, specifically in relation to local authorities.

At present there is a dual system of parking enforcement (outside London) local authorities may adopt the provisions (accept to be bound by them) of the Traffic Management Act 2004 and operate a system of decriminalised parking enforcement.  Otherwise the authority acts under the old criminal law contained in section 35 Road Traffic Regulation Act 1984.  That means that if you receive a parking ticket in certain authorities and do not pay that authority may prosecute you in the magistrates court and you may be convicted of a criminal offence.

I have yet to come across a person, be it an official, magistrate or member of the public, who believes that such matters should be dealt with in court.  As one senior official once quipped to me 'no court wants to deal with this shit, only weirdos like you and me are remotely interested in parking.'

When it comes to the criminal law that is certainly a fair assumption I think, the criminal law should not be used for parking enforcement.  No one sees it as a criminal offence and no one who has received a parking ticket would even consider their actions as criminal.  Be that as it may approximately 20 local authorities still use the criminal law offence (i.e. they have not adopted the provisions of the Traffic Management Act 2004)

This cannot be right and I would, for my part, amend the law to make it far harder for local authorities to use the criminal law for parking transgressions.

Of course it is not right to dictate to a local authority how they must operate parking enforcement, that is a matter of local democracy.  I suspect that few of the electorate in these boroughs realise the difference, but authorities are legitimately entitled to operate how they see fit.

How then should the law be altered so that the choice of decriminalising enforcement still exists but but clearly encourages authorities to adopt the decriminalised method?  I think the criminal law concept of mens rea is helpful hear.

Mens rea, or guilty mind, essentially means that a prosecutor must prove that the defendant either intended to commit the criminal act, or appreciated how reckless his / her actions were in committing the act.    At present parking criminal offences are strict liability, this means that the defendant's thoughts and intentions are immaterial all that matters is that the act was committed.  Even if by accident the defendant would still be guilty.  Speeding is an example from general motoring criminal law, it matters not why you were speeding, it only matters that you were.

If you think about this for a second the concept of mens rea can be incredibly difficult for prosecutors.  Imagine trying to prove that a defendant intentionally drove above the speed limit (where that defendant categorically denies they did so intend), I would suggest that most speed prosecutions would fail.  It would be far too high a burden on the prosecution to prove intentional speeding.

Back to parking:  authorities do not have to prove that you intentionally parked your vehicle in contravention of the law, all they need prove is that your vehicle was present and contravening the authority's rules.

This is the point at which I believe the criminal law should be amended.  If authorities want to continue to use the criminal law in parking enforcement then parking offences should carry a mens rea requirement.  Authorities should have to prove, in criminal cases, that those who commit parking offences intended to do so, or acted with clear reckless disregard for the parking rules.  The criminal law is too powerful an instrument to use against actions that are so widely regarded as not criminal.

Whilst this proposal would not force authorities to adopt the decriminalised method (thus keeping local democracy within the system) it would force authorities to reflect on whether they actually think parking transgressions are criminal offences.  I would suspect that those few authorities who do use the criminal law would soon see the benefit of the decriminalised process.

For what it is worth that is my proposal for reform of the law, with the deregulation bill currently going through parliament perhaps it is time to look again at this matter.

Don't Drink Think!

A new survey for the government's THINK! campaign has found that 92% of the British public would be ashamed of drink driving and 91% felt that it was unacceptable to drive drunk.

This is certainly to be welcomed and represents an attitudinal shift that has been going on for some time.  Indeed the number of accidents involving a drunk driver has been decreasing significantly.  In 2012 6,630 accidents involved a drunk driver (a 44% reduction since 2000), 210 of which were fatal accidents (a 53% reduction since 2000).

Drink driving itself may also be said to be reducing based on the number of drivers failing a breath tests, in 2012 11% of all breath tests resulted in either failure or the driver refusing to give a specimen.  Again that proportion is reducing from 20% in 2003 to 11% in 2012.  At the same time there has been an overall increase in the number of breath tests being issued, from 534,285 in 2003 to 682,558 in 2012.  Over the previous ten years there has be an average 3% reduction year on year in the number of breath tests failed or refused, and an average 6% reduction in the number of road accidents caused by drink driving.

The statistics therefore bear out the opinion poll, however, one should be cautious about the findings of the opinion poll.  Unfortunately, I haven't been able to locate an actual copy of the poll results or the questions asked, therefore the methodology used is unknown.  From my own research I can say that one does need to treat with caution peoples attitudes as expressed in an opinion poll, this is especially the case where that poll relates to questions of legality.

I have little doubt that a very large proportion of the public look on drink driving with distaste, however, what I would question is what members of the public understand by the phrase 'drink driving'.  Are the public aware of the legal limits and how this translates into their own drinking practices?  I think that is much more interesting question and one that is difficult to answer using survey research.

If people aren't aware of the legal demand 

In the UK, the alcohol limit for drivers is 80 milligrammes of alcohol per 100 millilitres of blood, 35 microgrammes per 100 millilitres of breath or 107 milligrammes per 100 millilitres of urine

or aren't aware of how this demand translates into glasses, pints and measures, one needs to be suspect of the attitudes as expressed in the THINK! survey.

What I have found in my own research is that in opinion surveys relating to minor laws people are generally motivated to comply with laws but their behaviour suggests otherwise.  A really rather brilliant study by Darely, Carlsmith and Robinson highlights this problem.  Citizens may profess to know what the law is and claim to be affected by it, however frequently the authors found that the public (and judges, lawyers and police officers) have completely misunderstood the actual legal requirements and thus their claims of being influenced by the law are suspect.

Thus I may think drink driving is unacceptable, however, do I think my pint of Stella puts me over the drink drive limit?  I don't know.  Of course the easiest solution is to not drive at all once drinking (a course I always take and so should you!) however, how do I know when it is safe to drive again? Talk to any police officer and they will have multiple stories of the upstanding member of society being arrested for drunk driving because they had drank the previous night.  Is that as unacceptable behaviour as willful disregard of drink driving rules?  I shall leave that to the reader.

These are important questions that need to be asked, and answered, before we can confidently state that drink driving is no longer acceptable at all.  One reason why this is an important question is due to the repeated call to adopt zero tolerance to drink driving (i.e. 0 alcohol in the blood, breath and urine).  With such an approach there is a danger that you don't take the public with you and that the system becomes discredited because it does not target the actual behaviour that we, as society, find unacceptable.

Some may feel that it is unacceptable to drive with any alcohol in the blood, I suspect however that this feeling is not as widespread as current opinion in the THINK! survey suggests.

Insurance and the Speed Awareness Course

An interesting piece in Daily Telegraph leads with the headline "I took a speed awareness course and my car insurance doubled".  Of course this represents just one instance of one policy doubling in amount so perhaps one shouldn't get worked up about the 'doubling'.  Indeed the piece overall is quite balanced in how it reports insurance decisions.  What will be interesting to many motorists however is the fact that ones insurance can increase if one attends a speed awareness course.

The idea of awareness courses in motoring stem from the Road Traffic Law Review conducted by Peter North in 1988.  This report recommended the use of one day driver retraining courses for those drivers who it was felt were responsible for accidents.  It was not taken forward by the Government at the time but Devon and Cornwall Constabulary did take the idea forward at the local level.

At present a number of such schemes exist, some covering more serious instances of driver offending (Drink Driving) whilst the majority aimed at the more minor end (Seat-belt, Traffic Lights, Speeding, Mobile Phone Use, Careless Driving).  The use of such courses has gained impetus by being a centre piece of current government policy.

Attendance on a speed awareness course is not compulsory, instead it is offered as an option alongside the FPN and prosecution alternatives.  There has certainly been an uptake of the course by drivers, indeed more people sit the speed awareness course now than receive a fixed penalty notice for speeding.

One should certainly be wary of any claims that speeding offences have reduced overall, over the last 5 years the number of speeding offences actioned by the police has risen by approximately 200,000.  Thus the idea that the speed awareness course reduces the likelihood of offending is somewhat undermined, in that more offending than ever is occurring.  The course merely displaces offenders at the lower end away from FPNs and prosecutions.

Herein lies the problem for insurers, the actual risk on the road from speed is not decreasing (based on the official action statistics) it is increasing.  Insurance is all about risk and it seems only sensible (no matter how much we may dislike it) that premiums increase as risk increases.  The ultimate question though is whether such courses lower the risk of speeding for those who attend them.

It is fair to say that those who attend speed awareness courses on the whole are lower risk than those who accept an FPN (I accept that I am making huge generalizations here).  The course is typically offered to those who speed only a small percentage above the thresholds for speeding enforcement (10% plus 2 mph).  For example those speeding 13 mph above a 30 mph limit will not generally be eligible for the course and instead offered an FPN.  Those caught driving between 35-42 will be offered the course as an option, providing they haven't sat the course in the previous year.  Thus the more risky drivers are not offered the option of a course, although as the course is an option even low risk drivers may still accept the FPN instead of spending time on the course.

This is an interesting approach to say the least.  Surely attempts at lowering risk through education have more potential benefit when they are aimed at the more risky drivers?  Be that as it may at present the course is seen as suitable for low risk and the fixed penalty for higher risk drivers.

There is some evidence to suggest that such awareness courses do improve driver behaviour, although this is typically short term and a relatively modest effect.  Of course vehicle insurance is a short term deal (typically one year) which may support the idea that attendance on such a course should reduce not increase one's premium.  Certainly more concrete evidence is needed before that claim can be made with confidence, the studies to date aren't definitive.

 ACPO (The Association of Chief Police Officers) were, in 2012, critical of insurance companies who raised premiums based on attendance at a speed awareness course.  They argued similar to the above points that attendance on the course lowered risk by making driver behaviour better.

ACPO's position is somewhat problematic.   If it believes the awareness course is the better option for combating problematic speed then it should have the courage of its convictions and recommend the removal of the FPN as an option for speeding between certain thresholds.  My own research has found that the availability of the awareness course certainly contributes to officers issuing more penalties than perhaps they would have done.

By making the course available the police are given a "positive" option (the course) which they can "sell" to the motorist as a cheaper alternative to the FPN.  This makes it easier for officers to enforce legislation that they may otherwise  have some difficulty in justifying to themselves.  The course is not stressed as a punishment but a positive alternative to punishment in which the driver obtains a reduction in the FPN cost and an educational opportunity at the same time.

In any event awareness courses are here to stay and the best advice one can give when it comes to insurance is to shop around.  The best way to avoid the problem all together is to drive safely and below the limit, although I certainly accept that this is not always possible particularly in unfamiliar locations.

Why parking and road traffic?

The Australian academic Richard Fox in 1999 claimed that criminologists were remiss in noticing that criminal sanctions were increasingly being removed from the courts and instead criminal justice was becoming an on the spot phenomena.  The majority of sanctions were not being imposed at court but on the street or through the post. 

These sanctions removed any ceremony or pomp in the criminal justice system and instead appeared as, in the words of another noted Australian academic (Pat O'Malley) little more than another bill. No moral condemnation was attached to the punishment and instead justice imposed prices rather than punishments.

The description of such penalties as prices certainly strikes a familiar note to anyone who has owned a vehicle.  To run a vehicle requires money and in motoring there are endless costs to be paid: insurance, MOT, Road Duty, petrol / diesel and maintenance prices.  Added to this it seems quite fair to state that penalties for illegal parking, speeding, driving through a red light also can seem like just another cost of being a motorist.

As a society in 2013 we traveled over 303 billion miles in Great Britain, 37.8 million of us were entitled to drive a vehicle and in total we had at our disposal over 25 million private vehicles.  The combined length of the road network was estimated to be 245,700  miles.  Clearly if we all decided to drive at the same time it would be chaotic and available space would be soon cease to be available.

Societies then need to manage the flow of vehicles and vehicle ownership in order to maximize the efficiency of an incredibly complex and diverse system, meeting the needs of pedestrians, drivers (commercial and non commercial), organisations, cyclists and many other interests groups.  How society decides to regulate driving behavior is certainly not uncontroversial.  From the earliest transport acts, which could only conceive of the car as specialised form of locomotive, a "light locomotive" to the current mass of road transport regulations, the law has sought to control and regulate vehicle ownership and vehicle use.  The primary means through which it has done this in both policy and practice is through the use of money.

Money, and in particular monetised penalties, have become the primary means of controlling both the supply and demand for the use of available road space.

We have certainly paid a lot, and will continue to do so, for the privilege of driving.  Also as a society we are certainly no angels when it comes to complying with the regulations of the road, anywhere up-to 9.7 million of us were caught illegally parked or driving through areas we shouldn't have in 2013.

When it comes to general driving regulation a little over 3 million of us have points on our driving licence, with one interesting 43 year old in 2012/13 GB  having 45 points on their licence

This amount of problematic behaviour would certainly be challenging for the traditional system of criminal justice to handle.  Whether the current system gets the balance right is certainly an interesting question and one I hope to have piqued your interest in, and hopefully as this blog fills out some interesting facets of road traffic and parking regulation will be presented for your interest.

Please do keep coming back, or get in touch through the comments if you wish to discuss or share.

Adam

A new blog for parking issues

This blog is dedicated to understanding and sharing ideas about parking and road traffic enforcement.  This blog is intended to foster debate and help understand the complex, and much maligned, process of parking and road traffic enforcement.

It is perhaps fair to say that no system of legal regulation involves more interaction between ostensibly normal citizens and the state that parking and road traffic enforcement.  As drivers we received approximately 10 million notices last year as a result of parking, driving or owning our vehicle.  This figure only applies to notices issued by state agencies (local government parking enforcement officials called 'Civilian Enforcement Officers' (CEOs), traffic wardens and police officers) the amount of those issued by private companies  at present is unknown.

Owning a vehicle then creates a special relationship between state and citizen, one in which the citizen is frequently, in the words of Ella Fitzgerald, "bewitched, bothered and bewildered."  I hope that as a result of visiting this blog over the coming months the bewildering aspect of parking and road traffic enforcement will lessen.

I hope that you will find information on here gives you a new appreciation of the difficulty of regulating road traffic and the difficulty of complying with all of demands made of us as citizens.

My interest in this topic stems from my research into the use of on the spot penalties in the justice system at Keele University.  It is no exaggeration to suggest that road traffic fixed penalty notices and parking penalty charge notices are perhaps the most maligned of all on the spot penalties, understanding why and how the debate over traffic regulation takes place is incredibly interesting to me.  I hope you will find something of interest for you as well.

Please do read on.